SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. PAUL FISHER
BEFORE: MR. JUSTICE CALUM MACLEOD
COUNSEL: Hart Shouldice, Counsel, for the Provincial Crown Glen A. Boyd, Counsel for the Federal Crown Trevor Brown, Counsel, for the Accused
HEARD: December 19, 2016
THIS IS A WRITTEN COPY OF REASONS DELIVERED ORALLY
THERE IS A PUBLICATION BAN UNDER S. 517 OF THE CRIMINAL CODE
THESE REASONS SHALL NOT BE PUBLISHED, BROADCAST OR TRANSMITTED PRIOR TO THE TRIAL OF THE ACCUSED
ENDORSEMENT
1This is bail review sought by the accused pursuant to s. 520 of the Criminal Code of Canada. Mr. Fisher is charged with a number of firearm and drug offences and is currently in pre-trial detention as he was denied bail.
2The bail hearing took place before Justice of the Peace K. Baum on December 8th, 2016. The Justice of the Peace reviewed the bail plan and his sureties and after determining that detention was not justified under the primary or secondary grounds, she proceeded to order detention under the tertiary grounds. The accused seeks to have that order reviewed and to have this court grant him bail.
3By way of background, Paul Samuel Fisher is 18 years old. He will be 19 in March. He has no criminal record but he does have a history of involvement with drugs. At the time of his arrest on November 29th, 2016 he was apparently living on his own in an apartment paid for by his mother.
4The events leading up to his arrest are unusual. He called the police because he advised that he needed help to remove unwanted guests from his apartment. Apparently the police who arrived were attacked by three females and after calling for backup they were arrested and charged with aggravated assault on the officers.
5Police officers returned to the apartment because they were advised that Mr. Fisher was injured and according to the police they were invited in. Mr. Fisher had a wound on one of his feet and there was blood on the floor. The police inspected the apartment and found a loaded firearm in a closet along with other weapons. Subsequently a warrant was obtained and the police located two loaded firearms, brass knuckles, a bulletproof vest and a large quantity of drugs.
6At the bail hearing, Mr. Fisher’s parents were present and prepared to stand as surety. Stephen Fisher is a family physician and Anne Frenette is a lawyer with the federal government. They live together in the family home where Paul also resided until he moved to an apartment. They are each prepared to fulfil their obligations as surety and they are each prepared to sign bonds for $10,000.00 or whatever amount is deemed fit by the court. They also put forward a detailed bail plan.
7In reviewing the plan, the Justice of the Peace concluded that it was a very strong plan and she found that detention would not be justified under the secondary ground. She then went on to recite the four factors set out in s. 515 (10) (c) CCC. Those are that it is necessary to detain the accused to maintain public confidence in the administration of justice having regard to i) the apparent strength of the prosecutor’s case; ii) the gravity of the offence; iii) the circumstances surrounding the commission of the offence, including whether a firearm was used; and iii) the fact that the accused is liable on conviction for a potentially lengthy term of imprisonment … or where a firearm is involved a minimum sentence of at least three years. (See. S. 515 (10) (c) and the application of that section as mandated by the Supreme Court of Canada in R. v. St. Cloud.)
8Her Worship concluded that because of the toxic mix of firearms and drugs in this case, public confidence in the administration of justice would be undermined if the accused was released and she ordered his detention. In doing so, she was conscious of the decision in St. Cloud and related jurisprudence. She was also conscious of the individual circumstances of the accused to the extent that she repeatedly stressed his age and his lack of a previous criminal record.
9The accused seeks review on the basis that the Justice of the Peace erred in law or made an order that was inappropriate. In his submission, Her Worship erred by treating the factors in 515 (10 (c) as if they were checkboxes and by failing to properly analyze those factors. It is his submission that the strength of the bail plan and the support of his family should have factored into the analysis of his personal circumstances and therefore into the tertiary analysis. He contends that despite the gravity of the offences, the detention of an 18 year old with no record in these circumstances is not necessary to maintain confidence in the justice system and instead there should be release on strict terms.
10R. v. St. Cloud, is the leading authority from the Supreme Court of Canada. Not only does St. Cloud clearly state that there is no hierarchy amongst the three grounds for detention it also establishes the limits on bail reviews. It is not enough that the reviewing court might have come to a different disposition. The bail court justice is entitled to deference and this court can only intervene if the Justice of the Peace erred in law or gave inappropriate weight to the factors she was bound to consider.
11The interrelationship between the factors considered under the secondary grounds and the consideration of those same factors as part of the tertiary grounds has been the subject of some debate. In R. v. Rubec for example, Justice Phillips overturned a release order because in his view the Justice of the Peace had improperly allowed the s. 515 (10) (b) analysis to infiltrate s. 515 (10) (c) to the extent that she allowed her analysis under the former to drive her conclusion under the latter. If this is allowed to happen then there would be no need for the latter subsection and it is effectively gutted. This is directly contrary to St. Cloud. The Supreme Court adopted the words of the Chief Justice in R. v. Hall in which she explained the proper interpretation of s. 515. At paragraph 40 of Hall, the court stated that there were clearly situations in which despite the fact that detention was neither required to ensure attendance at future court hearings nor to prevent future crimes, the presence of the accused in the community would call into question the public’s confidence in the administration of justice.
12It is however equally erroneous not to give factors driving the 515 (10 (b) analysis any weight in assessing the factors specified by parliament under 515 (10 (c). Those factors must be given primacy but they must be analyzed not in isolation but in the context of the accused before the court in all of the circumstances. I agree with counsel for the accused that the relative strength of the bail plan and the integrity of the sureties who testified that they would supervise their son and call the police if he breaches any conditions ought to have been assessed as part of deciding if detention was necessary or not. In fact that is precisely the conclusion reached by Justice Trotter in R. v. Dang (see paras 57 – 58)
13It is important always to remember that the right to bail is a presumptive right both under the Code and the Charter. Detention is to be ordered only when necessary on the grounds set out in the Code. Whenever it is reasonable to do so, pre-trial release on appropriate terms should be granted at a time when the accused is still entitled to the presumption of innocence.
14In my view the court below did err in giving insufficient consideration as to whether the strength of the bail plan combined with the young age of the accused and his other personal circumstances would mitigate against any loss of confidence in the justice system if he is released under strict house arrest.
15Accordingly the application for review is granted.
16The accused will be released from custody on the terms and conditions set out in the bail plan. I will require the sureties be increased to $15,000 each. I will also hear further submissions on the terms of the house arrest if counsel believe the proposed terms to be inadequate.
Mr. Justice C. MacLeod
Date: December 19, 2016